Unsolicited direct marketing calls, texts and e-mails to consumers

With effect from the 6^th April 2015 the rules around unsolicited direct marketing calls, texts and e-mails to consumers have changed with a view to making it easier for the Information Commissioner to take effective enforcement against organisations who flout the rules.

Under the Privacy and Electronic Communications (EC Directive) Regulations 2003 there are strict rules on businesses who contact consumers via unsolicited direct marketing calls, texts and e-mails – you know the ones we have all received telling us we have been in an accident (and probably have not) and are entitled to compensation or that we are entitled to a PPI refund!

Under the original legislation dating back to 2003 it was necessary for the Information Commissioner to establish that the contravention was of a kind causing “substantial damage or substantial distress” to consumers before fines could be levied. This was a significant benchmark which resulted in a number of fines imposed by the Information Commissioner being overturned on appeal.

The most notable of these was the Niebel case where Mr Niebel and his Stockport based company, Tetrus, were involved in sending hundreds of thousands of unlawful text messages in connection with PPI claims or accidents and were allegedly making up to £8,000 per day selling on these leads.  The Information Commissioner issued Mr Niebel with a £300,000 fine and his business partner with a further £140,000 fine. Mr Niebel appealed and the £300,000 penalty was overturned on the basis that the contravention was not found to be “of a kind likely to cause substantial damage or substantial distress”.

The latest up-date to the legislation removes the requirement for the contravention to be “of a kind likely to cause substantial damage or substantial distress” which should make it considerably easier for the Information Commissioner’s office to issue monetary penalties to organisations that flout the rules on unsolicited electronic direct marketing.

If you or your business are involved in sending direct marketing calls, texts and e-mails to consumers then it is worth making sure you are doing so within the existing legislation and that you are not putting your business and its reputation at risk. For further information on how to make sure your business is complying with the relevant legislation, please get in touch with Christian Mancier, a partner in our corporate/commercial department on 0161 930 5117